Fair Use Checklist and LIU's Copyright Discussion

Note:Here is a useful chart to facilitate your fair use analysis first developed by Indiana University’s Copyright Management Center. Long Island University’s Department of Information Technology policies contain a discussion of the Copyright Act, as well as information about where to find a list of legal downloading sites. Please make use of these resources.

Printed Materials

Printed Materials

Journal Article for Classroom Use

SCENARIO 1: A professor copies one article from a periodical for distribution to the class.

FAIR USE? Yes. Distribution of multiple copies with appropriate copyright attribution for classroom use is fair use. However, the repeated use of a copyrighted work, from term-to-term, requires more scrutiny in a fair use evaluation. Repeated use of the same article weighs against fair use

Posting Copyrighted Article to Web Page

SCENARIO 2: A professor has posted his class notes on a web page available to the public. He wants to scan an article from a copyrighted journal and add it to his web page.

FAIR USE? No, if access is open to the public, then this use is not fair use. No exclusively educational purpose can be guaranteed when an article is distributed on the web, and such conduct would arguably violate the copyright holder's right of public distribution. If access to the web page is restricted (password-protected or available only to registered students), then it is more likely to be considered fair use.

Coursepacks

SCENARIO 3: A professor copies excerpts of documents, including copyrighted text books and journals, from various sources. The professor plans to distribute the materials to his class as a coursepack.

FAIR USE? No. You need to obtain permission before reproducing copyrighted materials for an academic course pack. It's the instructor's obligation to obtain clearance for materials used in class. Instructors may try to delegate this task to a clearance service or copy shop. However, it remains the instructor’s obligation to insure that copyright permissions have been obtained, and the instructor’s liability for each misuse if they are not.

Textbooks

SCENARIO 4: A professor wishes to use a textbook he considers to be too expensive. He makes copies of the book for the class.

FAIR USE? No. Although the use is educational, the professor is using more than a single chapter from the textbook. By providing copies of the entire book to his students, he has affected the commercial market for the product. This conduct clearly interferes with the marketing monopoly of the copyright owner. The professor should place a copy on reserve or require the students to purchase the book.

SCENARIO 5: A professor decides to make three copies of a textbook and place them on reserve in the library for the class.

FAIR USE? No. This conduct still interferes with the marketing monopoly of the copyright owner. The professor may place three textbooks, but not the copies, on reserve, or ask the library or department to purchase additional books for student use.

Public Domain Materials

SCENARIO 6: A teacher copies a Shakespearian play from a copyrighted anthology.

FAIR USE? Yes. The play is in the public domain and not subject to copyright protection.

Unpublished Letters

SCENARIO 7: A professor of psychology desires to edit and publish a collection of unpublished letters in the library archives.

FAIR USE? The answer to this scenario requires further information. Has the author’s copyright protection expired? Are the letters subject to any agreement the library made with the donor? Can the author or authors of the letters be located? Is the library agreeable to publication? This is the type of problem that requires a detailed legal and factual analysis. One should consult the institution's office of legal affairs for advice.

Journal Article for Personal Use

SCENARIO 8: A professor wishes to make a copy of an article from a copyrighted periodical for her files to use later.

FAIR USE? Yes. This is a classic example of personal fair use so long as the professor uses the article only for her personal files and reference purposes.

Out-of-Print-Book

SCENARIO 9: A library has a book that is out of print and unavailable. The book is an important one in the professor's field that she needs for her research. The professor would like to copy the book for her files.

FAIR USE? Yes. This is another example of personal use. If one engages in the fair use analysis (see the Checklist for Fair Use), one finds that: (1) the purpose of the use is educational versus commercial; (2) the professor is using the book, a creative work, for research purposes; (3) copying the entire book would normally exceed the bounds of fair use, however, since the book is out of print and no longer available from any other source, the copying is acceptable; (4) finally, the copying will have no impact on the market for the book because the book is no longer available from any other source

SCENARIO 10: Using the same facts as explained in SCENARIO 9 could the professor copy the book and place the book on reserve in the library? Could the professor scan the book into her computer and place the book onto the World Wide Web?

FAIR USE? If the professor placed the book on reserve in the library, the use would be considered a fair use. However, if the professor placed the book on the Web, then the use is not a fair use. Online placement on the Web facilitates unlimited access to the book. This would affect the copyright holder's commercial right to publicly distribute the book.

Video Recordings

Showing a Video for Classroom Instruction

SCENARIO 11: A teacher wishes to show a copyrighted motion picture to her class for instructional purposes. It has been checked out from the library or is the instructor's personal copy.

FAIR USE? Yes, since it is for classroom instruction and no admission fee is charged. Tuition and course fees do not constitute admission fees. Everyone in attendance must be an enrolled member of the course. U.S. Copyright law requires that videos only be used for face-to-face teaching. Since there can be no teaching without an instructor, if a video is being screened for class, the instructor must be present.

Showing a Library Video at a Campus-wide Screening

SCENARIO 12: A teacher wishes to show a copyrighted motion picture to an audience that includes individuals not enrolled in her class. It has been checked out from the library or is the instructor's personal copy.

FAIR USE? Maybe. Videos owned by the library or an individual are permissable for use as part of face-to-face teaching for students enrolled in a particular class. Screenings that are not part of face-to-face teaching activities for a particular class and/or that involved audience members not enrolled in the class require the purchase of public performance rights (PPR). Only some of the videos in the Brooklyn Library Media Center have been purchased with PPR. When checking out library video, feel free to ask whether or not these rights have been purchased for a particular film to avoid violating copyright.

Copying a Video for Classroom Instruction

SCENARIO 13: A teacher makes a copy of the video described in SCENARIO 11 for a colleague to show in another class.

FAIR USE? No. The teacher may lend her personal copy of the video to a colleague for thie purpose, but making a copy is not permissable.

Renting a Video That Is in the Public Domain for Nonclassroom Use

SCENARIO 14: A professor wishes to raise funds for a scholarship. She rents a video of a motion picture on which the copyright has expired and charges admission fees.

FAIR USE? Yes. The copyright of the motion picture has expired, which places the motion picture in the public domain. Be careful about these assumptions, though, because recent amendments to the Copyright Act have extended many periods of copyright protection that otherwise would have lapsed.

Renting a Video That Is Copyright-Protected for Nonclassroom Use

SCENARIO 15: The facts are the same as those in SCENARIO 14 except that the movie is protected by copyright.

FAIR USE? No, because it infringes on the copyright owner's right to market the work.

Multimedia projects

Classroom Presentation

SCENARIO 16: A teacher or student prepares and gives a presentation that displays photographs. Permission was not obtained to use the photographs.

FAIR USE? Yes. The copyright fair use provision explicitly provides for classroom use of copyrighted material. Instructors and students may perform and display their own educational projects or presentations for instruction.

Electronic Transmission or Broadcast of Classroom Presentation

What if the presentation incorporating the photographs discussed in SCENARIO 16 is broadcast to a distant classroom?

FAIR USE? Yes. This use would be considered fair use, as long as the presentation is broadcast for remote instruction.

Broadcast of Classroom Presentation to Home or Office

What if the presentation discussed in SCENARIO 16 is broadcast to students at their homes or offices?

FAIR USE? Yes. This use would be considered fair use if the individuals are enrolled in a course and viewing the presentation for purposes of criticism, comment, teaching or instruction, scholarship, or research.

Videotaping of Classroom Presentation

What if the teacher's or student's presentation explained in SCENARIO 16 is videotaped?

FAIR USE? This use would be considered fair use, if the videotape is then used solely for educational purposes such as student review or if the videotape is for instruction.

Broadcast of Videotaped Classroom Presentation

What if the SCENARIO 16 presentation incorporating the photographs is videotaped and rebroadcast within the institution? Is this a fair use?

FAIR USE? The use of the photographs is fair use only if the presentation is videotaped and rebroadcast over the institution’s network for non-public instructional purposes only. Note: if additional copies of the videotape are made, the photographs’ fair use exemption will be lost.

Incorporation of Photographs in an Electronic Presentation (Excluding the Internet)

What if the SCENARIO 16 presentation is included in an electronic presentation such as Microsoft's Power Point?

FAIR USE? This should be considered fair use as long as the electronic presentation is solely for institutional educational or instructional use.

Making Changes to Photographs

What if the student or teacher were to change the attributes of the pictures discussed in SCENARIO 16?

FAIR USE? Yes. This would be considered fair use for education, comment, criticism, or parody. One must inform the audience that changes were made to the photographer's copyrighted work.

Use of Copyrighted Music

SCENARIO 17: A teacher or student creates a presentation and incorporates copyrighted music into the background. Assume that permission was not obtained to use the music for the presentation.Can the music be included in the teacher's or student's initial presentation?

FAIR USE? This is fair use if instruction is occurring, as long as the teacher or student paid for the recording in the first place and duplicate copies of the presentation are not made.

Use of Music Over Two-Way Interactive Video (GSAMS)

Same facts as SCENARIO 17. The presentation is broadcast to a distant classroom using two-way interactive video (GSAMS).

FAIR USE? Yes. The use of interactive video for educational instruction is considered a fair use, as it is simultaneous.

Use of Music in Videotaped Classroom Presentation

What if the teacher's or student's presentation described in SCENARIO 17 is videotaped?

FAIR USE? It is fair use if only if the videotape continues to be used for instructional purposes.

Use of Music in Broadcast of Videotaped Classroom Presentation

What if the SCENARIO 17 presentation is videotaped and rebroadcast?

FAIR USE? The answer depends on the usage. If instruction is occurring where the presentation is shown and there are no admission charges to the rebroadcast, the presumption is of fair use. Tuition and course fees do not constitute admission fees.

Use of Music in an Electronic Presentation (Excluding the Internet)

What if the SCENARIO 17 presentation is included in an electronic presentation (excluding the Internet)?

FAIR USE? This is fair use only if instruction is occurring.

Use of Music as Content in a Classroom Presentation

SCENARIO 18: A professor teaches an opera course, and the professor creates a presentation. The presentation contains the works of ten contemporary artists and is presented to a new class every semester.

FAIR USE? Possibly. If the presentation is solely for instruction and no single piece is an entire subunit (aria, movement or the like) of the work. As is true for printed material, repeated use by an instructor of the same set of third party musical works in the classroom setting weighs against fair use, as do extended extracts from the source material.

Use of Music in Classroom Presentations on the Internet

The opera classroom presentation (SCENARIO 18) or the presentation containing background music (SCENARIO 16) is placed on the Internet?

FAIR USE? This will only be fair use if access to the instructional site is restricted to enrolled students, e.g., by use of a password or PIN or other means, and available only for limited periods of time.

Electronic Course Reserves

Electronic Course Reserves

Placing a Book Chapter on the Library's Electronic Reserves

SCENARIO 26: A professor wants to add a book chapter to the library's electronic reserve system.

FAIR USE? Yes. The chapter may be added if access to the system is limited to students enrolled in the class.

Retention of Book Chapters on Electronic Reserve

SCENARIO 27 : The professor in SCENARIO 26 will be teaching the same course for three successive terms. She wants to leave a book chapter on the electronic reserve system for this period of time.

FAIR USE? Yes. The use is fair if access is limited to students and the work is out of print and not readily available. However, if the book is currently in print, then a fair use analysis is required.